On May 19, 2020 Preservation Leadership Forum, in partnership with the National Alliance of Preservation Commissions (NAPC) hosted the first of two webinars on Virtual Public Meetings. Part One focused on the legal issues surrounding this shift to virtual meetings, while part two took a look at some case studies from the field.
Virtual Public Meetings: Part 1 - Legal Issues
With traditional, in-person public meetings on hold for the foreseeable future, local preservation commissions and advocates are exploring new ways to conduct their work and engage community members. The first part of the series, focused on the legal issues involved in adapting local preservation commission activities to the crisis,
Cory Kegerise, Chair, National Alliance of Preservation Commissions and Community Preservation Coordinator at the Pennsylvania SHPO
Sara Bronin, National Trust Advisor and Law Professor
Anne Nelson, Associate General Counsel, National Trust for Historic Preservation
Virtual Public Meetings: Part 2 - Lessons from the Field
Part 2, which took place on June 11
centered around learning from the field and include results from a NAPC survey of members, examples from local practitioners, and lessons learned to date that can be applied now and in the future. Speakers:
Robin Ziegler, Nashville Metropolitan Historic Zoning Commission
Wade Brodhead, City of Florence, Colorado
Dana Marks, Town of Wellesley, Massachusetts
Jim Lindberg, National Trust for Historic Preservation
Here are a few questions that were not answered during Part 1 of the series. There were no unanswered questions in Part 2.
Our Certificate of Appropriateness approval process requires a physical signature by the HPC chair and secretary. Is there an alternative way to handle this?
It depends on the source of the requirement for the approval and whether you’re in a jurisdiction that has declared a state of emergency. Typically, during a declared state of emergency, a mayor or governor can waive local or state laws to the contrary for a temporary period. So, if the requirement that there be a physical signature comes from local law, it’s possible that your chief elected official can waive the requirement in the name of public safety.
In my location we were under a shelter in place order where it was very difficult to organize community response to developer driven projects that were unpopular and clearly identified as non-essential services. Concurrent with this, virtually all other committees were suspended. Is there precedence for arguing that this was unequal treatment under the law?
In general, having logistical difficulty organizing opposition wouldn’t, standing alone, justify a successful due process challenge. It’s unclear from the question whether there was a public hearing during which the public would be allowed to provide input. If there was a public hearing, and it was noticed and conducted in accordance with either the regular rules or the pandemic-modified rules, then a due process challenge may be difficult. On the other hand, if a matter that should have been conducted as a public hearing excluded the public, then you’d have better standing to challenge any approvals.
We have set up site visits in the past for commissioners to visit a project site, how is this being handled in other jurisdictions now? Are you requiring additional visual materials in place of site visits?
Generally, historic commissions are concerned with the exterior of a property. You could consider two options for site visits. First, site visits could be conducted by video, where one person or two people are on site and the others join in real time, by video. In that case, even though it’s not in person, remember to provide public notice of the site visit if you’ll have a quorum. Second, you might encourage commissioners to visit a site individually. If they will need to step onto private property to conduct a review, it's probably best to get written approval from the applicant for them to enter the property and schedule visits if it will be particularly intrusive.
What are best practices for asking a board member to not vote on an issue if they are disconnected from or left the conference call?
It really depends on how much information or testimony the board member missed. If it was a very small amount, you could repeat what was stated or presented to ensure they caught up. If it was a larger amount, and you don’t have quorum issues, you could simply ask them to refrain from voting. Issues may be raised if a commissioner misses the entire discussion at a prior meeting but desires to vote or is required to vote (because she is necessary for a quorum) at a subsequent meeting. In that case, the best practice is to ensure that prior to the second meeting, the commissioner has listened to the recording of the meeting, read a transcript of the meeting, or reviewed detailed meting minutes if there was no recording or transcript. In any of these circumstances, the commissioner should be asked or should state for the record at the subsequent meeting that she has done one of those three things and explain that she feels competent to vote.
What issues with ADA do we need to be aware of when meeting virtually?
At a minimum, closed captioning should be available on the system you have chosen to use.
Concerning equity, is fair that someone might have full access to the meeting, visual and audio, while someone else might not have that privilege and might only be able to get audio?
It’s true that there will be some who cannot fully participate in the meetings for technological reasons. However, in-person meetings can also exclude those who lack transportation, child care, or travel time. There will always be trade-offs. But in Hartford for example, we have seen virtual attendance outpace in-person attendance.
The majority of my city's historic preservation commission would prefer to meet virtually, and our city has Webex capabilities. Unfortunately, the city refuses to give us this option and says that if commissioners are not "high risk" then they are required to attend and will be marked "absent" if they do not show. How do you suggest we proceed to protect those who do not want to attend in person? Why should someone who is "high risk" be forced to be labelled as such and subjected to this invasion of privacy?
This is a troubling question. Commissioners should not have to choose between their personal safety and their public service goals. I would wonder whether the city has made this guidance official. If not, perhaps the commission chair, staff, and department director can work together to make a case that commissioners should not have to make this terrible choice.